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We need a nonpartisan system for judicial appointments

Aug 18, 2015

Michigan Supreme Court Justice Mary Beth Kelly unexpectedly announced yesterday that she was leaving the court in six weeks to return to private practice, where she will presumably make more money. 

She was first elected to the court less than five years ago, but is bailing out only about halfway through her term, saying she had accomplished what she set out to do.

To me, there’s something odd about that. Barring health or family reasons, I would think elected officials ought to feel an obligation to finish the term they asked the voters to give them. But resignations from the state’s highest court are fairly common, and what this means is that the governor will get to name a replacement for the third time in five years.

Most likely, Mr. Snyder will, in a few days or weeks, name a prominent Republican judge, lawyer or politician to the court. That appointee will then have to face a statewide election next year to finish the last two years of Justice Kelly’s term. If the governor were a Democrat, he or she would appoint a Democratic lawyer or judge. That’s the way it’s always been.

To be fair, Snyder’s previous appointees have received mostly favorable reviews, and there’s been considerable improvement in the Michigan Supreme Court’s reputation from a few years ago, when it, according to a bipartisan report calling for reform, had “attracted national attention for its excessive cost, its lack of transparency and its damaging negativity.”

But though the court’s public image may have improved, justice shouldn’t be a partisan thing. And there is a better model for how we should replace resigning judges. Four years ago, concerned about the court’s reputation, then-Chief Justice Marilyn Kelly decided to do something about it. Kelly is a Democrat, but she recruited a Republican federal court of appeals judge, James Ryan, and former U.S. Supreme Court Justice Sandra Day O’Connor, also a Republican appointee. The three agreed to head a Michigan Judicial Selection Task Force, which reached out to some of the state’s most distinguished citizens, both lawyers and non-lawyers.

The goal was to come up with a better blueprint for selecting judges, and they did that. Every one of their recommendations was unanimous. Their report noted that throughout history, almost half of all Michigan Supreme Court justices have been appointed by governors.

The task force suggested that when a justice resigns, the governor name an advisory screening commission to accept applications and conduct public hearings. After that, the committee would present the governor with a list of three to five highly qualified candidates.

The governor would then pick one of them.

This, the task force felt, would give Michigan citizens confidence that the new justice was highly qualified. They concluded, “the task force respectfully asks Governor Snyder to adopt this practice in his current administration.” Unfortunately, the governor has totally ignored their recommendations, and sadly, will probably do so again. But this would be a far better way.

Few things are more important than confidence in our courts. We’d also be better off if the task force’s other recommendations for reforming our judiciary, including going to a nonpartisan system of elections, were taken seriously as well.

Jack Lessenberry is Michigan Radio's political analyst. Views expressed in his essays are his own and do not necessarily reflect those of Michigan Radio, its management or the station licensee, The University of Michigan.